Citation Nr: 1019270
Decision Date: 05/25/10 Archive Date: 06/09/10
DOCKET NO. 08-17 881 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to a disability rating in excess of 20 percent
for osteoarthritis of the lumbar spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David Gratz, Associate Counsel
INTRODUCTION
The Veteran's DD Form 214 shows active duty service from
January 1995 to April 1996, and for an additional 14 years, 8
months, and 16 days
This matter comes before the Board of Veterans' Appeals
(Board) from a September 2007 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which continued the Veteran's 10 percent
disability rating for osteoarthritis of the lumbar spine at
L5-S1.
In a May 2009 rating decision, the RO increased the
evaluation for the Veteran's osteoarthritis of the lumbar
spine at L5-S1 to 20 percent, effective March 30, 2007-the
date of the Veteran's claim for an increased rating. As that
award was not a complete grant of benefits, the issue remains
in appellate status. AB v. Brown, 6 Vet. App. 35 (1993).
In February 2010, the Veteran, through his representative,
waived RO consideration of the evidence submitted following
the most recent review by the Agency of Original Jurisdiction
(AOJ). 38 C.F.R. § 20.1304(c) (2009).
In March 2010, the Veteran testified at a hearing on appeal
before the undersigned Veterans Law Judge (video conference
hearing); a copy of the transcript is associated with the
record.
In July 2009, the Veteran, through his representative, filed
a claim for service connection for bilateral radiculopathy
and sciatica in his lower extremities, as secondary to his
service-connected osteoarthritis of the lumbar spine.
However, as the Veterans Law Judge explained at page 4 of the
March 2010 hearing, all neurological impairments of the lower
extremities are encompassed in his rating for osteoarthritis
of the lumbar spine. Consequently, no separate claim for
service connection is necessary. 38 C.F.R. § 4.71a,
Diagnostic Code 5242, Note 1.
FINDINGS OF FACT
1. Competent medical evidence shows the Veteran's service-
connected osteoarthritis of the lumbar spine is mild.
2. The findings of forward flexion of the Veteran's
thoracolumbar spine to 30 degrees or less do not accurately
reflect the actual severity and functional limitations of his
current situation, because they are based on intentional
magnifications.
3. The Veteran's claimed incapacitating attacks do not
include bed rest prescribed by a physician and treatment by a
physician.
4. Under the current criteria, the Veteran's service-
connected osteoarthritis, even with consideration of his
complaints of pain and other functional loss, has not been
shown by competent evidence to cause forward flexion of the
thoracolumbar spine to 30 degrees or less or favorable
ankylosis of the entire thoracolumbar spine.
5. The Veteran's service-connected osteoarthritis of the
lumbar spine has not been found by testing to be
characterized by neurological manifestations.
6. The Veteran's service-connected osteoarthritis of the
lumbar spine has not been found by testing to be
characterized by gout.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 20 percent
for service-connected osteoarthritis of the lumbar spine have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.40,
4.45, 4.59, 4.71a, Diagnostic Code 5242 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §
5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A; 38 C.F.R.
§ 3.159. Upon receipt of a complete or substantially
complete application for benefits, VA is required to notify
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; and (3) that the claimant is expected
to provide. See 38 C.F.R.
§ 3.159(b)(1). Such notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
An April 2007 letter, provided to the Veteran before the
September 2007 rating decision, satisfied VA's duty to notify
under 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159, since it informed the Veteran of what evidence was
needed to establish his claim, what VA would do and had done,
and what evidence he should provide. The April 2007 letter
also informed the Veteran that it was his responsibility to
help VA obtain medical evidence or other non-government
records necessary to support his claim.
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) issued a decision in
the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006),
which held that the notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service-connection claim, including the degree of
disability and the effective date of an award. The Veteran
was provided with such notice in April 2007.
With respect to the Veteran's claim for an increased rating
for his lumbar spine disability, the Federal Circuit has
held that VA's duty to notify, codified at 38 U.S.C.A. §
5103(a), does not require it to provide notice of alternative
diagnostic codes, or to solicit evidence of the impact of the
Veteran's claimed disability on his daily life. Vazquez-
Flores v. Shinseki, 580 F.3d 1270, 1277 (2009).
VA must make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). VA has
obtained the Veteran's service treatment records, VA
treatment records, and available private treatment records.
The Veteran was also provided the opportunity to present
testimony at a hearing on appeal before the undersigned
Veterans Law Judge. Thus, the Board considers the VA's duty
to assist satisfied. Accordingly, the Board finds that no
further assistance to the Veteran in acquiring evidence is
required by statute. 38 U.S.C.A. § 5103A (2009).
Analysis
Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
Veteran working or seeking work. 38 C.F.R. § 4.7 provides
that, where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is to be assigned.
While the Veteran's entire history is reviewed when assigning
a disability evaluation, 38 C.F.R. § 4.1, where service
connection has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55 (1994). The Court has held that in determining
the present level of a disability for any increased
evaluation claim, the Board must consider the application of
staged ratings. See Hart v. Mansfield, 21 Vet. App. 505
(2007). In other words, where the evidence contains factual
findings that demonstrate distinct time periods in which the
service-connected disability exhibited diverse symptoms
meeting the criteria for different ratings during the course
of the appeal, the assignment of staged ratings would be
necessary.
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
Veteran's ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10.
With respect to disabilities involving the musculoskeletal
system, the Court has emphasized that when assigning a
disability rating, it is necessary to consider functional
loss due to flare-ups, fatigability, incoordination, and pain
on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). The rating for an orthopedic disorder should reflect
functional limitation which is due to pain, supported by
adequate pathology, and evidenced by the visible behavior of
the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part, which becomes
painful on use, must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. 38 C.F.R. § 4.40. The factors of disability
reside in reductions of their normal excursion of movements
in different planes. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight bearing are related considerations. 38 C.F.R. § 4.45.
It is the intention of the VA Schedule for Rating
Disabilities (Rating Schedule) to recognize actually painful,
unstable, or malaligned joints, due to healed injury, as
entitled to at least the minimal compensable rating for the
joint. 38 C.F.R. § 4.59.
Under Diagnostic Code 5242 and the General Rating Formula for
Diseases and Injuries of the Spine, a 20 percent disability
rating applies where the Veteran has forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the cervical spine
greater than 15 degrees but not greater than 30 degrees; or,
the combined range of motion of the thoracolumbar spine is
not greater than 120 degrees; or, the combined range of
motion of the cervical spine is not greater than 170 degrees;
or, muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis.
A 30 percent disability rating applies where the Veteran has
forward flexion of the cervical spine 15 degrees or less; or,
favorable ankylosis of the entire cervical spine.
A 40 percent disability rating applies where the Veteran has
unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine is 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine.
A 50 percent disability rating applies where the Veteran has
unfavorable ankylosis of the entire thoracolumbar spine.
A 100 percent disability rating applies where the Veteran has
unfavorable ankylosis of the entire spine.
Pursuant to Note 1, any associated objective neurologic
abnormalities are to be evaluated separately, under an
appropriate diagnostic code. Neurological conditions are
rated under 38 C.F.R. § 4.124a.
Under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes, a 40 percent disability
rating applies where the Veteran has incapacitating episodes
having a total duration of at least 4 weeks, but less than 6
weeks, during the past 12 months. A 60 percent disability
rating applies where the Veteran has incapacitating episodes
having a total duration of at least 6 weeks during the past
12 months. An incapacitating episode is a period of acute
signs and symptoms due to intervertebral disc syndrome that
requires (1) bed rest prescribed by a physician, and (2)
treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code
5243.
The Veteran contends in his March 2007 claim that his
degenerative arthritis of the spine has gotten worse, and
that his "pain now goes down [to the] back of my legs."
The Veteran notes that he has "extreme pain" when sitting
down and standing up, and states that he has had handicapped-
accessible installations placed in his bathroom. In his June
2008 substantive appeal, the Veteran noted that he had
received multiple shots from VA clinicians for his back pain;
he further requested that his disability rating be increased
to 100 percent.
At his March 2010 hearing before the undersigned Veterans Law
Judge, the Veteran's representative asserted that the Veteran
has limitation of forward flexion of the thoracolumbar spine
to 30 degrees, which warrants a 40 percent evaluation. See
p. 4. The Veteran further alleged that his doctor had
diagnosed him with sciatica and gout. Id. at pp. 5, 11.
Additionally, he alleged that he is constantly in pain, and
has incapacitating attacks 2 to 4 times per month-equating
to 4 to 6 weeks out of the past 12 months-with each
incapacitating episode lasting 2 to 4 days. Id. at pp. 6-7,
10. On that basis, the Veteran's representative asserted
that the Veteran should be rated as 60 percent disabled under
the rating for intervertebral disc syndrome. Id. at p. 7.
The Veteran further alleged that he has pain and spasms in
his left leg, which he associates with his back condition.
Id. at pp. 7-8. At the conclusion of the hearing, the
Veteran's representative asked that the Veteran be considered
unemployable. Id. at p. 12.
In March 2007, a VA clinician provided the Veteran with a
cane for assistance with ambulation.
The Veteran's private physician, C.A. Nester, Jr., M.D.,
diagnosed the Veteran with low back pain in August 2007, and
opined that the Veteran is completely disabled and unable to
do full-time work. He further found tenderness, spasms, and
pain in the left side paraspinous muscles at L4-L5 with
straightening of lumbar lordosis, and left root neuropathy.
Dr. Nester further found that the Veteran had weakness of the
left thigh; atrophy of the left thigh muscles; a stabbing
pain in the left calf and thigh; and decreased left leg
sensation, confirmed by a filament test. The Veteran had 25
degrees of flexion at his waist (forward flexion), limited by
pain; lateral bending (lateral flexion) to 20 degrees
bilaterally, limited by pain; and rotation of the spine to 25
degrees, limited by pain. Dr. Nester indicated that the
Veteran was not a malingerer.
In August 2008, Dr. Nester again diagnosed the Veteran with
low back pain, and opined that he was unable to work. He
found that the Veteran had osteoarthritic pain in his lower
back, and pain in his left leg. Dr. Nester again indicated
that the Veteran was not a malingerer.
The Veteran received a magnetic resonance imaging (MRI) test
from a VA radiologist, who diagnosed the Veteran with
straightening of the lumbar spine, degenerative disc disease
at L5-S1, and narrowing of the spinal canal and neural
foramina in September 2008. Specifically, the Veteran had
mild left facet joint osteoarthropathy resulting in mild
narrowing of the left neural foramen at L3-L4; mild bilateral
facet joint osteoarthropathy and a minimal diffuse disc
bulge, resulting in minimal narrowing of the spinal canal and
minimal narrowing of the neural foramina bilaterally, at L4-
L5; and mild bilateral facet joint osteoarthropathy and a
mild diffuse disc bulge resulting in mild narrowing of the
spinal canal and mild narrowing of the left neural foramen at
L5-S1.
In November 2008, a VA clinician diagnosed the Veteran with
degenerative joint disease of the spine.
The Veteran was provided with a VA examination of his spine
in April 2009. The examiner reviewed the claims file,
including Dr. Nester's findings and the Veteran's VA
electronic medical record. The Veteran reported that he had
a constant spasm of pain in his lower back. He also reported
an increase in the severity and duration of pain in his left
posterior leg, extending down to the calf, as well as
numbness and tingling there. The Veteran reported wearing a
lumbar corset and using a cane. He noted that he has grab
bars and hand rails installed in his bathroom, and is unable
to go on recreational outings or go grocery shopping. He
stated that he has been unemployed due to his back pain since
2005. Prior to the physical examination, the VA examiner
"observed [the Veteran] bend over from a standing position
(while leaning on his cane) and retrieve a dropped object
from the floor without apparent pain or difficulty." On
examination, the VA examiner found that the Veteran had a
severe bilateral paravertebral muscle spasm with tenderness
to palpation and percussion over the lower lumbar spine from
L4 to S1. A straight leg raising test from the supine
position was positive for left thigh pain at 60 degrees, and
right thigh pain at 50 degrees. From the sitting position,
the Veteran resisted straight leg raising above 90 degrees
bilaterally. The examiner found that "range of motion of
the lumbar spine tested from a standing position was
extremely limited with the Veteran showing limited effort.
Standing forward flexion of the lumbar spine was limited to
55 degrees, with the Veteran complaining of pain starting at
30 degrees, although he had previously been observed by this
examiner to be able to sit in the exam room chair with his
lumbar spine and hips flexed at a 90 degree position.
Extension of the lumbar spine was limited to 5 degrees with
the Veteran complaining of pain at that endpoint. Left
lateral flexion was limited to 20 degrees with pain at that
endpoint. Right lateral flexion was limited to 18 degrees
with pain at that endpoint. The Veteran did not cooperate
fully with lateral rotational testing, with very poor effort
and movement of perhaps 5-10 degrees leftward and rightward
on that testing with complaints of severe pain at those
endpoints. There was no evidence of further limitation of
motion due to pain, weakness, stiffness, or fatigability on
repetitive testing." The examiner further found that the
Waddell's axial loading test was positive for complaints of
lumbar spine pain, "indicating some degree of magnification
of symptoms." The examiner diagnosed the Veteran with mild
osteoarthritis of the lumbar spine. He further opined that
"the Veteran gave variable effort during today's physical
examination of the lumbar spine and lower extremities, with
signs of magnification of symptoms, so it is likely that the
measured strength and range of motion testing outcomes listed
above do not accurately reflect the actual severity and
functional limitations of his current situation."
A VA physician took x-rays of the Veteran's lumbosacral spine
in November 2009. He found that the Veteran's lumbar
vertebral bodies revealed that the heights and alignment were
well-maintained. Intervertebral discs revealed mild diffuse
degenerative disc changes, which were more advanced at L5-S1.
There was no evidence of spondylolysis or focal osseous
lesions.
In December 2009, testing by a VA clinician revealed that the
Veteran's uric acid levels were between 3.5 and 8.5 mg/dL. A
note following the test results stated that uric acid levels
above 7.0 mg/dL are associated with development of gout, with
sustained higher levels significantly increasing the risk of
contracting gout. However, there is no evidence that the
Veteran was diagnosed with gout.
Where, as here, conflicting medical opinions are of record,
the Board can ascribe greater probative weight to one opinion
over another, provided that a rational basis is given. See
Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854
(Fed. Cir. 1999). Greater weight may be placed on one
clinician's opinion than another's based on the reasoning in
the opinions, and whether and to what extent the clinicians
reviewed the Veteran's prior clinical records and other
evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).
The Board finds four rational bases for ascribing greater
probative weight to the April 2009 VA examiner's opinion that
the Veteran magnified his symptoms, thereby making it
"likely that the measured strength and range of motion
testing outcomes listed above do not accurately reflect the
actual severity and functional limitations of his current
situation." First, the VA examiner personally "observed
[the Veteran] bend over from a standing position (while
leaning on his cane) and retrieve a dropped object from the
floor without apparent pain or difficulty." Second, the VA
examiner noted in his report that although "standing forward
flexion of the lumbar spine was limited to 55 degrees, with
the Veteran complaining of pain starting at 30 degrees," the
Veteran "had previously been observed by this examiner to be
able to sit in the exam room chair with his lumbar spine and
hips flexed at a 90 degree position." Third, the VA
examiner performed a Waddell's axial loading test, the
results of which, according to the VA examiner, "indicat[ed]
some degree of magnification of symptoms" by the Veteran.
By contrast, although Dr. Nester found that the Veteran had
forward flexion to only 25 degrees and indicated that the
Veteran was not a malingerer, he offered no rationale to
support that conclusion. Fourth, unlike the April 2009 VA
examiner, who reviewed the Veteran's claims file, Dr. Nester
gave no indication of having done so. Owens v. Brown, 7 Vet.
App. 429, 433 (1995) (review of the claims folder is
significant since opinions provided are based on the correct
facts); cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295
(2008) (a lack of review of a VA claims file does not render
a medical opinion incompetent.) Notably, the Veteran's
claims file included the results of the aforementioned
September 2008 MRI testing, which the VA examiner
incorporated into his examination report. For those four
reasons, the Board finds that the April 2009 VA examiner's
opinion that the Veteran intentionally magnified his
limitation of range of motion on forward flexion is more
probative than Dr. Nester's opinion to the contrary.
Because, as the April 2009 VA examiner opined, the "range of
motion testing outcomes listed above do not accurately
reflect the actual severity and functional limitations of his
current situation" due to the Veteran's intentional
magnifications, he is not entitled to a disability rating of
40 percent for forward flexion of the thoracolumbar spine of
30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5242.
The Board further finds that the Veteran is ineligible for a
rating under the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes. Although the
Veteran reported at his March 2010 hearing before the
undersigned Veterans Law Judge, at pp. 6-7, that he has had
incapacitating attacks for four to six weeks during the past
12 months, there is no competent medical evidence of record
showing that he received treatment and physician-prescribed
bedrest for those episodes. Consequently, a rating based on
incapacitating episodes is inapplicable. 38 C.F.R. § 4.71a,
Diagnostic Code 5243.
The Veteran contends that he should receive a separate rating
for neurological manifestations in his left leg, to include
sciatica (see March 2010 Board hearing at pp. 4, 5, and 11).
Dr. Nester, in August 2007, diagnosed the Veteran with left
root neuropathy. However, no diagnosis of sciatica is of
record. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a
layperson's account of what a clinician purportedly said is
too attenuated to constitute medical evidence). Moreover,
Dr. Nester's conclusion is not accompanied by any nerve
testing or rationale. Most significantly, the VA examiner,
in April 2009, did not find any evidence of neurological
manifestations resulting from the Veteran's service-connected
spine. Consequently, no separate rating for neurological
manifestations is applicable here.
With respect to the Veteran's contention that he was
diagnosed with and should be rated for gout (see March 2010
Board hearing at pp. 5, 11), the Board finds no diagnosis of
that condition during the pendency of his claim. See
Robinette, supra. As noted above, although VA testing in
December 2009 revealed that the Veteran's uric acid levels
were between 3.5 and 8.5 mg/dL, and a note following the test
results stated that uric acid levels above 7.0 mg/dL are
associated with development of gout, there is no evidence
that the Veteran was diagnosed with gout. The finding of
increased risk factors for a condition, such as gout, is
insufficient evidence of an actual diagnosis of that
condition.
Regarding the Veteran's request to be considered unemployable
(see March 2010 Board hearing at p. 12), the Board finds that
a finding of total disability rating based on individual
unemployability (TDIU) is not warranted in this case. If the
claimant or the evidence of record reasonably raises the
question of whether the Veteran is unemployable due to a
service-connected disability for which an increased rating is
sought, then part and parcel with the increased rating claim
is the issue of whether a TDIU is warranted as a result of
that disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54
(2009). In this case, the evidence of record does not
reasonably raise the question of whether the Veteran is
unemployable due to his service-connected lumbar spine
disability; rather, the most probative evidence of record
shows that the Veteran has mild osteoarthritis of the lumbar
spine. Consequently, neither a rating nor a remand for TDIU
is warranted in this case.
Weakness is as important as limitation of motion, and a part
which becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. § 4.40. The Court has held that VA must
analyze the evidence of pain, weakened movement, excess
fatigability, or incoordination and determine the level of
associated functional loss in light of 38 C.F.R. § 4.40,
which requires the VA to regard as "seriously disabled" any
part of the musculoskeletal system that becomes painful on
use. DeLuca, supra. Even with consideration of pain on
movement, at no point did the Veteran's service-connected
osteoarthritis of the lumbar spine fall within any criteria
warranting more than a 20 percent evaluation.
In reaching this determination, the Board has considered
whether, under Hart, supra, a higher rating for the Veteran's
osteoarthritis of the lumbar spine might be warranted for any
period of time during the pendency of this appeal. However,
there is no evidence that the Veteran's osteoarthritis of the
lumbar spine has been persistently more severe than the
extent of disabilities contemplated under the assigned rating
of 20 percent at any time.
The Board has considered the issue of whether the Veteran's
osteoarthritis of the lumbar spine, standing alone, presents
an exceptional or unusual disability picture, as to render
impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v.
Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet.
App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995). The governing norm in an exceptional case is a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. See 38 C.F.R § 3.321(b)(1)
(2009). In this case, there is no evidence that the
Veteran's mild osteoarthritis of the lumbar spine has either
resulted in frequent hospitalizations or interfered with his
employment beyond the contemplated 20 percent disability
rating.
There is no benefit of the doubt that can be resolved in his
favor, as the preponderance of the evidence does not show
symptoms that more nearly approximate the criteria for a
higher rating. Accordingly, the claim for an increased
rating is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55-
57 (1991).
ORDER
A disability rating in excess of 20 percent for
osteoarthritis of the lumbar spine is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs